Following the death of Lisa Marie, famously the only child of Elvis and Priscilla Presley, the validity of her Will has come into question. Lisa Marie inherited $100m from her late father, at the age of 25 in 1993. Priscilla Presley has reportedly challenged a 2016 amendment that replaced her as trustee to Lisa Marie’s living trust. A “living trust” is a US law concept most closely to what we would know as a Will.
According to Priscilla’s lawyers, the document misspelled Priscilla’s name and had a signature that appeared “unusual”, Replacing her as trustee would mean Priscilla was no longer overseeing her daughter's assets.
In Scotland, Executors who have been appointed under a Will hold a very powerful position with many duties and obligations. They have been chosen by the deceased to carry out a specific role because they have been trusted to administer the estate correctly and in line with the deceased’s Will. As such, it is no surprise Priscilla Presley is contesting her removal.
Whilst the challenge is ongoing in America, we can consider some of the potential grounds of challenge to a testamentary document in Scotland and the importance of a properly prepared Will by a solicitor.
Amendments to your Will: Codicils
It goes without saying that your Will should be reviewed regularly and kept up to date. For certain changes, it may be appropriate to do a Codicil rather than re-drafting your entire Will.
A Codicil is a document that varies the terms of your existing Will and is read alongside it. Codicils can be used to change your executors or beneficiaries, to add or remove sections of your Will, or to update names and addresses. In essence it is often used for changes which do not fundamentally rewrite the original Will’s terms
Potential Challenges
A Codicil could remove an Executor named in your Will and appoint a new Executor, for example, removing a parent and appointing a child. Whilst there is no requirement for the testator to inform the replaced Executor, you may consider doing so as a matter of courtesy. From the news stories, the need to inform the “sacked” trustee may be a requirement under US law.
In Scotland, a removed Executor could attempt to challenge the Codicil (which removes them) on any of the following grounds:
- Invalidity
Something technical undermines the validity of the Will such as that it is not properly signed or witnessed. If the document seems to be is signed and witnessed correctly, there is a presumption that it has been properly executed. This presumption can be refuted but it requires good evidence. If, as is often a danger with home-drafted documents, they have not been executed correctly, the onus is on the individual, i.e. your child, seeking to rely on the document to prove its validity. - Lack of testamentary capacity
There are three tests used to determine testamentary capacity: (1) the testator must understand the nature and effects of the intended Will (2) the testator must understand the extent of the property they are disposing, and (3) the testator must appreciate the nature and extent of the obligations to which they are giving effect. This is a difficult challenge to sustain if a solicitor was engaged to prepare the Will. If solicitors have any doubts, they will most likely seek medical evidence about the testator’s capacity before they take a final view. A lawyer should never take or enact the instructions of someone lacking capacity. - Undue influence
For a testator to have been unduly influenced, evidence must be led proving that a relationship of trust and confidence that the deceased held was abused and that this subsequently caused them to amend their Will. The classic example is an elderly person suddenly and without any apparent justification cutting their family out of their Will in favour of a new (often younger) close friend who has recently formed a close relationship with them. - Facility and circumvention
This is similar to “undue influence”. If the testator has diminished capacity and is more susceptible to change the terms of their Will in a certain way, a challenge can be made on this basis. Three criteria must be proved: (1) the testator was easily imposed upon, (2) there was circumvention or fraud, and (3) the individuals making the challenge (or their expected beneficiaries)have suffered harm; - Fraud
The document can be challenged on the basis that it was not signed by the testator, or, for example someone may create a false identify and pass themselves off as someone else in order to benefit from an estate.
The burden of proof always lies on the party challenging the Will / Codicil. If a Will / Codicil, is struck down, then an estate can fall into intestacy which can have very serious unexpected consequences. At best a testator’s wishes may not be fulfilled.
Advantages of having your Will / Codicil prepared by a solicitor
The best way to ensure that your Will and Codicil are drafted and executed correctly is to make an appointment with your solicitor to discuss the changes that you would like to make.
- If the changes you wish to make are potentially controversial, a solicitor will ensure that the terms are unambiguous.
- A solicitor will ensure the document, when executed, is both valid and probative, placing the onus on any potential challenger to prove the contrary.
- A solicitor’s file can record and back up a testator’s stated wishes, capacity, and absence of facility & circumvention so that any challenge to the document can be defended.
The process is quick and relatively inexpensive when compared with the cost and distress of resolving disagreements or defending challenges when you are no longer around.
If you would like to discuss drafting a Will or Codicil, or you are in need of advice on succession planning, please contact a member of our Private Client team on 03330 430150.
